Houghton, J. :
The plaintiff purchased a threshing machine from the defendant upon condition that the machine should remain the property of the vendor until the purchase price, payable in installments and represented by promissory notes, should be fully paid.
Upon the execution of the contract and delivery of the machine to the plaintiff a portion of the purchase price was paid, and four promissory notes of fifty-five dollars each, due at various times, were delivered to the defendant. Prior to the commencement of this action the plaintiff paid the one first becoming due, with interest.
The plaintiff claims that it was a part of his contract of purchase that the defendant should keep on hand in his vicinity parts of the machine for the purpose of repairs, and that because of breach thereof he was deprived of the profits of a threshing season. The action was commenced'in Justice’s Court to recover such damages. The defendant set up, by way of counterclaim, two of the notes which were then due. The plaintiff obtained judgment, whereupon the defendant appealed to the County Court for a new trial, on which the plaintiff was nonsuited as to his cause of action and a judgment was directed against him on the counterclaim for the amount due on the notes.
Without passing upon the question as to whether or not the *156plaintiff has any right of action on- his alleged claim we think the judgment must be reversed because of an error in the rejection of evidence. The plaintiff offered to show, for the purpose of defeating the notes, that the defendant had taken possession of the machine, which, under objection, was excluded. This was manifest error. Under its contract the defendant had the right, in case of non-payment, to retake the property. The plaintiff had a right to show how and under what circumstances it was retaken. If absolute, because it belonged to the defendant, there could be no recovery for the full purchase price. A vendor under a conditional sale cannot have both the property and the purchase price. Where he has elected to .retake the property absolutely, the consideration for obligations or security given for the purchase price fails, and he can neither collect upon the one nor enforce payment of the other. (Earle v. Robinson, 91 Hun, 363; affd. on opinion of court below, 157 N. Y. 683; Orcutt v. Rickenbrodt, 42 App. Div. 238.) Even if it be claimed that the defendant took the property as trustee for the plaintiff, still the plaintiff would have the right to the evidence and facts and circumstances of the taking, for in that case he would be entitled to have the value of the property offset against the balance of the purchase price remaining unpaid. Ho question of pleadings: can arise, for a reply is not necessary in Justice’s Court (Code Civ. Proc. § 2935); and on an appeal for a new trial in the County Court the issues are those framed in the court below. (Utter v. Nelligan, 92 Hun, 185.)
. The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new 'trial granted* with costs to appellant to abide event.